OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C. 115/2005

Present:-

1) Md.Sahadat Hussain, A.J.S.         -President

2) Smti Archana Deka Lahkar          - Member

3)Md  Jamatul Islam                         -  Member

Mrs.Bina Devi Sarma                                            -Complainant

W/O- S.K.Sarma

R/O- Manik Nagar,Guwahati-5

                              -VS-

1)    The Oriental Insurance Company                -Opp.Parties

Represented by the Regional Manager,

G.S.Road, Ulubari,Guwahati-7.

2)   The Oriental Insurance Company              

Represented by the Divisional Manager,

CDO -II.G.S.Road,

Christian Basti,Guwahati-5 .

3) M/S Kiron Transport  Company Pvt..Ltd.

Represented by the Manager,GNB Road,

Silpukhuri,Ghty-3.

4) The Manager, TELCO (BHPC)

Tata Motors Ltd.Centre-1

27^th Floor,World Trade Centre,

Cuffe Parade, Mumbai-400005.

Appearance:

Ld. Advocate   Ms Parijat Dutta for the complainant and Ms S.S.Choudhury and Ms Piyali Mitra for Opp.Party No-1& 2.

Date of oral argument- 23/08/2018

Date of  judgment- 28/09/2018

                                                                                                 JUDGMENT

This is a complaint u/s 12 of the Consumer Protection Act, 1986

1) The complaint filed by Sri Bina Devi Sarma against Oriental Insurance Company Ltd., represented by the Regional Manager, CDO -II, G.S.Road, Guwahati-03 and three others was admitted on 8.11.05, but the case was dismissed for default vide order dated 19.11.08, but the said order was also set aside by this forum vide order dated 2.3.10 passed in Misc case No. 5/07 and Opp.Party No.1 & 2 filed joint written statement and Opp.Party No.4 filed written statement separately. After filing written statement/ written objection by Opp.Party No. 4.this forum vide order dtd. 6.10.2010 passed substantial order holding that the complainant is not a consumer and the complaint is not maintainable. The complainant filed appeal before the Hon’ble State Commission against this Forum’s judgment and order  dtd. 6.10.10; and Hon’ble State Commission, after hearing the appeal, passed the judgment on 21.11.2013 and set aside this Forum’s judgment dtd. 6.10.2010, and remanded the case for giving decision on merit after hearing evidence of the parties. After receiving the case record on remand, the complainant filed evidence on affidavit and she was cross-examined by the Opp.Party No.1 & 2 side. The case against Opp.Party No.3 is proceeding exparte ; and at the stage of cross examination of C.W.2, the case against Opp.Party No.4 is proceeding on exparte vide our order dtd.25.1.17. The complainants filed evidence of another witness namely Sri Sailen Kr.Sarma and he was also cross examined by the Ld.counsel of Opp.Party No.1 & 2 side. Thereafter, one Sri Madhu Chandra Dhar filed her evidence for the Opp.Party No.1 & 2 and she was cross examined by the complainant side. Thereafter, ld.advocate Ms.Parijat Dutta filed written argument for the complainant on 21.6.18 and ld.advocate Ms.Swarnali S.Choudhury filed written argument for Opp.Party No-1 & 2 and finally on 23.8.18 we heard oral argument of Ld advocate Parijat Dutta for the complainant and of Ld advocate Ms Piyali Mitra for the Opp.Party No. 1 & 2 and today we deliver the judgment today which is as below- 

2)        The complainant’s  case in brief is that the complainant for her business installed a tanker of 12 KL capacity for carrying petrol in a  Tata Chesis purchased  vide invoice No. KTCPL/VS/2000/2001/057 which was purchased at a price of Rs.5,60,760/- and the said vehicle was registered by D.T.O.Darrang vide registration No. AS-13-6282 on 5.7.2000, but the said vehicle on 12.9.2000 met with an accident and accordingly, she made a claim to the Opp.Party No.1 & 2 for settling the claim and insurance company also settle the claim and an amount is credited towards higher purchase installments. Subsequently, on 3.6.2011 the said vehicle again met with an accident and she lodged claim and claim was settled by the insurance company and the claim amount was credited to her financer i.e. Telco. Again on 22.11.2002 her vehicle met with another accident and she immediately inform the insurance company (Opp.Party No. 2 & 3) about the matter and she was paying the installment to her financer up to 22.10.2002 prior to the 3^rd accident which offered on 22.11.2002 total Rs.4,67,588/-. After receiving the information about the accident she lodged the claim before the Divisional Manager of the Opp.Party No.1 , but they delayed the matter unreasonably and then she approached Insurance Ombudsman vide her complaint which was registered as No. NL/0IC/M0/14/5/03-03/GHY and the Ombudsman directed the insurance company to dispose of the claim within 15 days and report  back to him vide passing award of 1.9.2002 and receiving the order of the Ombudsman insurance company forwarded a proposal and settled the claim which was assess on total loss basis at Rs.4,23,500/-, but she is actually entitled to total insured value on the total loss of the vehicle, but the opp.party side claimed the claim as –

Net Loss                    -Rs.5,50,000.00

                                   Rs.4,25,000.00

                                   Rs. 4,23,500.00

And then she filed representation to the Ombudsman again claiming amount.

1.        Total loss of insured vehicle                    :           Rs.5,50,000.00

2.        Garage rent (28.11.02 to 6.2.04) @ 250 per day

                                                                            :           Rs. 1,80,500.00

3.        Inst.w.e.f. 22.11.02 to 6.2.04 @ 12.5%  per annum

                                                                            :           Rs.1,20,000.00

4.        Towing charge                                         :           Rs.    22,000.00

5.        Compensation for will full act and negligence

                                                         Total Rs.                 Rs.11,00,500.00

And insurance Ombudsman vide its award dtd.1.11.04 directed the opp.parties to pay any accordance with the prayer made by the complainant and the insurance company asked her to produce hire purchase termination certificate and accordingly she cleared all her dues payable to the hire purchase company with a request to furnish HPT certificate immediately and thereafter also the insurance company did not settle her claim and then she again made an application, insurance ombudsman and the insurance ombudsman passed an order providing liberty to the insurance company, seeking clarification from the finance company of their own and after that award she repeatedly requested the financer to issue necessary HPT certificate, but as on date nothing has been done and she also requested the insurance company to take initiative in that issue, but as on date nothing was done by them, and then she again approach the ombudsman and the ombudsman vide order dated 19.7.05 directed her to do needful in implementing the order dtd. 2.5.2005 i.e. the formal request to the financer for issuance of HPT certificate and accordingly on 19.7.2005 she again requested the financer to issue HPT certificate, but nothing has been done by them and being compelled she served legal notice dtd. 29.8.2005 making demand of issuance of HPT certificate and same also failed and in result she has been suffered financial loss and mental agony and then she became  compelled to file this complaint and prays to this forum to issue direction to the opp.parties to pay her Rs.5,50,000/- as damage for loss of her vehicle, charge rent @ Rs.250/- per day from 28.11.2002 to 28.10.2005 amounting to Rs.2,74,500/- and interest @ 12.5% per annum  with effect from 22.11.2002 to 28.10.2005 to the tune of Rs.2,05,250/- , Rs.22,000/-as towing charge, compensation of Rs.6,00,000/- for loss of her vehicle  , compensation of Rs.4,00,000/- for causing mental agony to her. Interest in delayed settlement of the claim @ 12.5% per annum, cost of the application including legal expenses including Rs.2,500/-.

3)        The pleading of Opp.Party No.1 & 2 is that there is no cause of action for filing the complaint. The complaint is barred by limitation. They cannot settle the claim unless hire purchase termination certificate issued by Tata Motors Ltd.for release of awarded amount has been deposited by the complainant which has not been submitted by the complainant . They requested Tata Motors Ltd. vide letter  dtd.17,5.05 to issue HPT as per award of the Ombudsman dtd. 2.5.2005, but till date they have not issue the same. The claim cannot settled due to non-receipt of HPT certificate from Tata Motors Ltd. and in this regard they also issued a letter to the Ombudsman vide letter dtd.; 9.6.2005 stating that they cannot settled the claim due to non-receipt of HPT certificate from Tata Motors Ltd. and in this regard they also issued a letter to the Ombudsman vide letter dtd. 9.6.05 stating that they settled the claim due to non-receipt of HPT certificate  from Tata Motors Ltd. and also sought permission to deposit the awarded amount to the office of the Ombudsman. The complainant is entitled to get amount as awarded by the insurance ombudsman vide award dtd. 22.11.2002 waving the interest part, because they are no way responsible for delaying  settling the matter. If any compensation is liable to pay, it is to be paid by Opp.party No.3 & 4 and not by them. They committed no deficiency of service towards the complainant . The complainant used her vehicle for commercial purpose and now she cannot take protection under Consumer Protection Act,1986.

4)        The pleading of the Opp.Party No.4, Manager, TELCO (BHPC), Tata Motors Ltd.Centre-1) is that the complaint is false , it has no cause of action . The complainant used the vehicle for commercial purpose and the complaint was to return RS.1,14,958/- as per Hire Purchase Agreement dt.28.5.2000 entered into by the complainant and them and hence they are empowered to withheld and hence, they are not negligent by withholding H.P.T.  The complainant had paid them Rs.6,477/- for other groups of contract , but not for Hire Purchase Agreement dt. 28.5.2000. So the case against them is liable to be dismissed.

5)        We have perused the pleading as well as evidence of the parties. We have also perused the submission of both sides’ ld.counsels and found that both sides admit that  (i) the complainant ,Smti Bina Devi Sarma had purchased a Tata Chasis vide Invoice No. K.T.CPL/VS/2000-2001/057 for business purpose at a pricie of Rs.5,60,760/- . on 29.5.2000, on hire purchase being financed by Tata Engineering and Locomotive Co.Ltd.(Bureau of Hire purse credit) (TELCO) (Opp.Party No.4) vide Hire Purchase Agreement dt. 28.5.2000 and she get the chasis connected to oil tanker and get it registered as No. AS-12-6282 through D.T.O. Darrang; (ii) In purchasing the said vehicle Opp.Party No.4 (Telco) financed her Rs.4,67,508/- (iii) the said vehicle had on 12.9.2000 , met with an accident and the claim was settled by the Opp.Party No.1 and again with the second accident on 3.6.2001 and the claim was settled  by the Opp.Party No.1 &2  and the said vehicle  met with the third accident on 22.11.2002 and the complainant informed all the opp.parties about said accident (iv) before the third accident, the complainant paid Rs.4,67,588/- (v) after the third accident, the complainant filed claimed before the opp.party, the the opp.party delayed in settling the claim and then she approach Insurance Ombudsman and the Ombudsman disposed of his complaint on 1.9.2003 registering complaint No. NL/OI/NO/1415/03-03/GHY and directed settle the dispose of the claim within 15 days  and the Insurance company forwarded a settlement of claim of the complainant on total loss basis which –

            Net loss                     - Rs. 5,50,000

                                                  Rs.  4,25,000

                                                   Rs. 4,23,500

            But she again approached the insurance company to pay her

                        a) total loss                                                             Rs.5,50,000.00

                        b) garage rent w.e.f.28.11.2002 to 6.2.04

                             Rs.250/- per day                                                Rs.1,00,500.00

                        c) Towing charge                            :                       Rs.    22,000.00

d)Compensation for negligence

                                                            Total Rs.                              Rs.11,00,500.00

But when the insurance company denied to make payment he approached the Ombudsman again and the Ombudsman vide award dtd. 01/11/2004 directed the opp.party to pay the complainant Rs.1,23,000/- less deduction Rs.1500/- with interest @ 9% per annum w.e.f. 01.11.2003 within 15 days but the insurance company did not comply with said direction rather directed her to produce HPT Certificate from the Finance and she cleared outstanding loan by paying Rs.62477/- and communicated the matter to the Insurance company on 30.3.2005 , but the Insurance company failed to give her relief and than again she approach the Insurance Ombudsman informing the Ombudsman that the inspite of clearing all the dues her financer has not issued HPT Certificate enabling the Insurance Company to settle her claim and then Ombudsman vide award dtd. 2.5.05 issued direction to her to procure HPT Certificate and also directed the Insurance company to ask for HPT Certificate from the financer; but the insurance company did not take initiative to call for the HPT Certificate from her financer and then she again approach the Ombudsman and the Ombudsman vide order dtd. 19.7.05 observed that complainant is required to do the needful in implementing the order dtd. 2.5.2005 i.e. Formal request to the Financer to issue the HPT Certificate and she again on 19.7.2005 requested her financer to issue the HPT Certificate but the later has not issued the same.

6)        It is admitted fact that , the vehicle of the complainant was completely damaged in the last accident and on the day of accident the vehicle was insured with Oriental Insurance Company Ltd. and the on the day of accident the insured value of vehicle was Rs.5,50,000/-.

7)        From the evidence of complainant it is clear that, the complainant has only one vehicle i.e. the damaged tanker and she got the said vehicle engaging driver on hire for earning money for her livelihood and she has no other source of income. The opp.party side also fails to rebut this version of complainant by adducing evidence except saying that, the vehicle was being used by the complainant for commercial purpose and hence she is not a consumer under the provisions of Consumer Protection Act. Thus, it is establish that the complainant by plying the said vehicle through her livelihood and it was the only means of her livelihood . Therefore, we are of opinion that, the explanation given under- Sub Clause- (ii) clause –(d) Sub-Sec.(1).Section-(2) of the Consumer Protection Act,1986 attracts her case and according to said explanation, the definition of commercial purpose does not cover her case and in result she is consumer in relation to her present claim for complete damage of her said vehicle in accident.

8)        From evidence it is found that, the insurance company also has not taken active steps for calling HPT Certificate from Opp.Party No.4 and Opp.Party No.4 also did not issue  HPT Certificate to the complainant  to the complainant saying that complainant have to pay them Rs.1,19,958/- as outstanding amount against the loan. Now question is that whether the complaint is actually liable to produce HPT Certificate for settling her claim by the insurance company . According to us the relation between Opp.Party No.4 and a complainant is a relation between creditor and loanee and the complainant herself is liable to clear the outstanding loan and insurer has no authority to see whether complainant has cleared the outstanding loan or not; Their only duty is that to pay the compensation to the complainant who is the registered owner of the vehicle and hence the insurance company has no right to withold the settlement of the claim on the ground of not furnishing the HPT Certificate and the insurance Ombudsman is also not right in directing the complainant to furnish the HPT Certificate to the  Opp.Party No-1 & 2 for settlement of the claim. Therefore, we are of opinion that the act of refusing  the claim of the complainant by the opp.party is a clear case of deficiency of service towards the complainant and it is also a case of unfair trade practice.

9)        We have perused the evidence and found that the insured declared value on the date of accident of the vehicle is Rs.5,50,000/- which the insurance company is liable to pay after deducting the certificate amount from the said amount with interest @6% p.a. from 22.11.2002 to the full satisfaction of the award and deductable amounts is Rs.1500/- as policy excess and as such he value of the vehicle to be paid is Rs.5,48,500/- which is o be paid with interest @ 6% per annum from 22.11.02.

            The vehicle was fully damaged and in such situation payment of garage rent does not arise at all but the complainant is not entitle to towing charge of  Rs.10,000/- for causing harassment to her and another amount of Rs.20,000/- as cost of the proceeding. As such, for the loss of the vehicle in the accident the complainant is entitled to get Rs.5,48,500/- with interest @ 6% per annum from 22.11.02 till full satisfaction of award and Rs.10,000/- as compensation for causing harassment to the complainant and Rs. 10,000/- as cost of the proceeding.

10)      Summing up our discussion as above , we hold that the complainant has a prima facie case against Opp.Party No.1 & 2(Oriental Insurance Co.Ltd.) and she has also succeeded to prove her case against them but she has no cause of action against Opp.Party No.3 & 4. Hence , the case against Opp.party No.1 & 2 (Oriental Insurance Co.Ltd.) is allowed on contest and they are directed to pay compensation for loss and damage of the vehicle of the complainant         Rs.5,48,500/-with interest @ 6% per annum from 22.11.02 till full satisfaction of award as well as Rs.10,000/- as compensation for causing harassment to the complainant and Rs. 10,000/- as cost of the proceeding to which both Opp.Party No.1 & 2 are jointly and severally liable; and case against  Opp.Party No.3 & 4 is dismissed . Opp.Party No.1 & 2  are directed to comply the award within two months, in default other two amount shall also carry interest at the same rate.

Given under our hands and seal on this 28^th September ,2018.

(Smt Archana Deka Lahkar)            (Md.Jamatul Islam)             (Md.Sahadat Hussain)                                                   Member                                                Member                                          President